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To get Kennedy on board, did Alito throw Little Sisters under the bus?

When reading Justice Alito's majority opinion in Hobby Lobby alongside Justice Kennedy's concurring opinion, the unifying thread is clear. And the results don't bode well for the pending cases of religious non-profits against the HHS mandate.

A for-profit corproration has been granted its claim under the Religious Freedom Restoration Act (RFRA) only because Kennedy maintains that the government did not use the least restrictive means of providing its compelling interest. From Kennedy (p. 3):

The means the Government chose is the imposition of a direct mandate on the employers in these cases. ... But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. ... The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.

HHS shouldn't distinguish between different religious believers, "when it may treat both equally by offering both of them the same accommodation." Later he repeats that "the mechanism for doing so is already in place." Thus the accommodation of religious non-profits currently on offer is precisely the legal model available for the for-profits (such as Hobby Lobby).

Justice Alito, for his part, makes similar points, but his opinion issues many more challenges to the government's case. The juxtaposition gives the sense that Kennedy was brought on board the majority only in so far as the "accommodation" option of the HHS mandate would be presented as a legal, alternative mechanism for delivering the government's compelling interest -- an interest Kennedy clearly believes the government has.

The suspicion that religious non-profits are not going to be exempted is perhaps corroborated by Alito's little scuffle in the footnotes about the fate of Little Sisters of the Poor for the Aged v. Sibelius (Alito n. 40 v. Ginsburg n. 27). That is to say, with today's ruling -- and presuming the same occupants of the court in the near future -- it is difficult if not impossible to see how religious non-profits such as Little Sisters of the Poor could win a RFRA claim.

In short, how could Alito and Kennedy rule in favor of Little Sisters of the Poor or other accommodated religious non-profits, when they said today that the accommodation model is the way forward for Hobby Lobby?

Nonetheless, there is still the matter of the self-certification form that would need to trigger the third-party coverage without cost-sharing. It remains to be seen whether the Roberts court finds the very act of conscientiously objecting through a piece of paper to be a "substantial burden" under RFRA. But based on the evidence of today's convergence between Alito and Kennedy, I don't think the accommodated non-profits can expect that burden to count.

... it seems to me that Kennedy is here going out of his way to say that he thinks the mandate advances a compelling government interest and that the accommodation might be the least burdensome way to advance it. And those are not just random points to make: they speak to the two-pronged test set out by RFRA.

Of course, the administration’s proposed accommodation was not at issue in this case. No one briefed it or discussed it in detail, and when the plaintiff’s attorney was asked about it in oral argument he said it hadn’t been offered to his clients so he had no opinion about it. So there would be no reason for Kennedy to have reached a judgment on it, and he surely didn’t give it the consideration he would in a case in which the accommodation was directly at issue. But these lines in Kennedy’s concurring opinion do seem to involve his going to some lengths to say he may be open to it — and therefore that today’s majority may not hold when the Little Sisters of the Poor and other groups bring the question of the administration’s accommodation before the Court.

Comments

In short, how could Alito and Kennedy rule in favor of Little Sisters of the Poor or other accommodated religious non-profits, when they said today that the accommodation model is the way forward for Hobby Lobby?

Wow...non-lawyer but my thoughts exactly. I think the Little Sisters are not going to prevail for that very reason.

It is interesting to note that Justice Alito referenced on page 36 of his majority decision on the Holly Lobby case the books of two Jesuits : one written by T Higgins, S.J. in 1949 and the other written by T. Davis, S.J. in 1935.

34.T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”)

I think of Obamacare's contraception mandate as dividing the employer world into three distinct groups:

(1) Religiously exempt organizations, e.g. my Catholic parish

(2) Religious organizations that aren't exempt but which have been 'accomodated', e.g. Notre Dame

(3) The vast world of large employers, who are bound by the contraception mandate

Before the lawsuit, Hobby Lobby would have been considered a (3), right? In the wake of the decision, is Hobby Lobby now a (2) or a (1)? Or is there now a (4) for closely held companies with religious convictions? Or is my entire taxonomy not right?

And what about the Little Sisters? I assume they're a (2). Do they want to be considered a (1)?

Calling it the contraceptive mandate is misleading. It is actually the preventative care mandate. That means that insurance companies and employers are required to offer a range of preventative care options for employes in health plans. And the government has a compelling interest in preventing disease,like it does accidents, etc. Contraception fall under preventative care. Simple. Contraception and abortion are two totally different things. conflating them as the Catholic Church does only leads to more confusion not clarity. The court will follow what the medical professional define and the legislation defines as preventative.

George: in general, the Catholic Church does not conflate contraception and abortion. Why do you believe that it does? In the standard teaching docs, e.g. Humanae Vitae, Evangelium Vitae, the Catechism of the Catholic Church, I don't think there is any conflation or confusion of any sort.

Having said that: there are a couple of (possible) points of intersection:

Certain contraceptives are alleged to have abortifacient effects, i.e. they may terminate the life of a conceptus. I expect most of us know that this is a controverted topic, but it was the basis for the Hobby Lobby lawsuit. But none of the parties seemed to have any difficulty making the distinction between abortion and contraception, and in fact the Greens willingly make over a dozen contraceptives available ot their employees.

Abortion certainly is used as something analogous to contraception, i.e. the one is a "make the pregnancy go away" treatment, and the other is a "don't let the pregnancy occur" treatment. Catholic pro-life advocates have always been right in pointing out that there is a "contraceptive mentality" that is contrary to the church's theology of marriage and family that is common to both practices.

Finally, at the risk of stating the obvious: dysentary, breast cancer and AIDS are diseases. I can't think of any situations in which the government has a compelling interest in permitting any of those illnesses. But pregnancy is not a disease, and it's not difficult to argue that the government has compelling interests in encouraging it, at least in an ordered fashion (e.g. among married couples). What is the government's compelling interest in preventing pregnancy?

JP - difficulty with your points. Talk to most MDs and you will find that from a medical/scientific point of view, there is no pregnancy until successful implantation (65% of all conceptions fail implantation - does this make God an abortionist? or do we just leave it up to a biologism approach parsed as *natural law*?)

Talk to most Bishops and it begins at conception. Thus, for many anything prior to successful implantation is not abortion or life as most define it. Thus, Plan B and Ella are not abortifants.

Preventing pregnancy - government action covers more than just disease - social, family, economic, education. Some argue that the primary point of HV was responsible family decisions - 60% of women who have abortions have kids already and to stop loving activity can hurt the family and thus use of contraception can be a responsible step - which is not a contraceptive mentality.Many (most catholics) would not agree with your secod bullet point. It is contrary to the hierarchical view - we know that the majority of catholics reject this approach.

Bill - I was responding to George, who wrote, "insurance companies and employers are required to offer a range of preventative care options for employes in health plans. And the government has a compelling interest in preventing disease,like it does accidents, etc. Contraception fall under preventative care." I took that to mean that a pregnancy is like a disease to be prevented, and I pointed out that's not what a pregnancy is. A term like "preventative care" that encompasses these two very different things - disease and pregnancy - amounts to weasel words (not that George or you invented the term, of course).

I agree that the government has a compelling interest in preventing and curing serious diseases like the ones I named. I'm pointing out that the government, pretty clearly, has an equally compelling interest in supporting the flourishing of the next generation, for any number of very practical reasons, beginning with the intergenerational compacts that are the two main legs of American retirement entitlements (Social Security and Medicare). Those two programs are already teetering, actuarially speaking, in large part because the generation that is supposed to support me in my dotage isn't large enough.

As it happens, our society almost certainly would be better off in a range of outcomes if its reproductive norms still were aligned to what the Catholic church continues to teach today: sexual intimacy and the acceptance of pregnancies during marriage; no sexual activity otherwise. Are the HHS standards, cloaked as they are in a claim to scientific wisdom, aligned to fostering those norms? From a policy standpoint, particularly given the precariousness of the entitlements (to name just one of the legitimate governmental interests in intergenerational flourishing), it would be foolish *not* to inquire whether the Obama Administration's policy is prudent. Adopting a policy of categorizing pregnancy under "preventative care" and treating pregnancy as something like the mumps, to be inoculated against in all cases, could be really dumb policymaking.

JP - the other point that is open to debate......"they make most contraceptives available." This, unfortunately, ignores medical, scientific, and actual experiences and is too often used to justify the Greens.

Added points made often:

- IUDs are very effective and can cost a month's pay for a minimum wage worker

- Some women for medical reasons are not able to use the Green's contraceptives - in some ways, their aproach is perverse for these women

JP - agree.....good points. HHS mandate is medical - not social or governmental engineering. It is an attempt to correct longstanding imbalances in US insurance plan coverages e.g. women paid more for certain procedures; women medical conditions are not always covered, researched, nor or medications financed. HHS mandate trys to balance this out and moves contraceptives to preventative care because it is a significant cost, need, and core part of women's health (so, annual visists can be covered and prescriptions moved to copays). Guess, in one sense, this can be seen as a broader social agenda but one could also say the same thing before the HHS (but in a negative way).

Is HHS aligned wth traditiona Catholic values - no. But would suggest that traditional catholic values have no connection to reality.....suggest that is one need for the Synod on the Family.

The vintage of that fine distinction in moral philosophy, which is known as remote material cooperation, was denatured by the arguments and holding in Hobby Lobby. But, if Little Sisters et al similarly prevail, this particularly fine wine of Catholic moral philosophy will be converted into water.

Pressing legal prerogatives, which may well have legitimacy under the federal statute, RFRA, will have come at the expense of making indirect cooperation with evil a distinction, thereafter, subject to parody via trivialization, watering down, dumbing down. Lawyers, I'm afraid, are exploiting political and religious tensions for their own profit, undoing the very moral tradition they defend with great pretense.

Well, it appears that Kennedy and Alito did not make a deal. Or if they did, Kennedy got hoodwinked.

Today Scalia et al. declared that the religious non-profit accommodation self-certification form is also going to be too much for RFRA, granting Wheaton College an injunction and overruling the 7th Circuit's order of June 30 (which had followed what Hobby Lobby laid out as the least restrictive means).

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious non profit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

From a more conservative, traditionalist perspective, invoking religious freedom and conscience clauses makes for poor strategy, undermining an important moral reality rather than bolstering the position in the public square.

One distinction, which comes up in First Amendment considerations of the free exercise and nonestablishment of religion, is that between matters of faith, which turn on religious sensibilities, and matters of conscience, which involve morality that are transparent to human reason.

However well intentioned, it can be a poor strategy to claim religious exemptions for what are essentially moral matters, because that can be tantamount to an admission that one's moral position cannot otherwise be argued successfully in the public square.

It can also be a poor strategy to invoke exemptions as a matter of conscience, because that can be tantamount to suggesting that a given moral reality should be, to some degree, a matter of indifference to the government vis a vis the common good; after all, exceptions don't get invoked when a truly compelling interest is at stake.

Finally, there are those distinctions between formal and material cooperation with evil. Formal cooperation entails agreement and consent. Material cooperation involves an assist, which can be inadvertent and/or unavoidable, which can also be direct (or proximate) or indirect, what we call remote material cooperation, which can be morally justified. It can be a poor overall strategy to pursue one's legal prerogatives to avoid even the remotest or most indirect cooperation with evil (even, let's say, for the noble aim to avoid scandal or to provide prophetic witness), because one can run the risk of trivializing the notion of remote material cooperation, subjecting this important tool of moral philosophy to parody in other important instances.

Certain legal and political strategies, however noble their aims, can thus undermine the very moral positions one group or another might otherwise wish to bolster. When such strategies get employed, one might wonder if it is because the moral argument of the proponents might be weak, indeed? whether or not, in society, at large, or even concerning the sensus fidelium, in the church, the argument has been utterly lost, e.g. contraception, marriage rights?

I imagine the argument will be that, while they identified a "less" restrictive approach, they were not necessarily holding that it was the "least" restrictive approach. But that grammatical re-construction would be rather disingenuous because their case holding both explicitly and implicitly relied on the finding of the FACT that the government's compelling interest, indeed, had a successful way forward via the accomodation route. I can only imagine someone reckons that converting certain accommodations to outright exemptions will merely further weaken but not totally thwart the compelling interest, which only a few outliers are denying, over against - not HHS, but - medical science.